State And Local Governments May Require A Vaccine Mandate. ‘Red States’ Are Doing Exactly The Opposite

The Washington Post’s Ruth Marcus expresses the frustration and anger responsible adults who live in the reality based community feel towards those reckless and irresponsible MAGA/QAnon cultists who refuse to get vaccinated out some partisan motive “to own the libs” – putting themselves, their family and friends, their neighbors and coworkers, and their fellow American citizens, including innocent children, at risk of serious illness and death. Require the vaccine. It’s time to stop coddling the reckless (excerpt):

Those of us who have behaved responsibly — wearing masks and, since the vaccines became available, getting our shots — cannot be held hostage by those who can’t be bothered to do the same, or who are too deluded by misinformation to understand what is so clearly in their own interest.

The more inconvenient we make life for the unvaccinated, the better our own lives will be. More important, the fewer who will needlessly die. We cannot ignore the emerging evidence that the delta variant is transmissible even by those who have been fully vaccinated. “The war has changed,” as the Centers for Disease Control and Prevention concluded.

[If] I sound exasperated, I am, and I don’t think I’m alone. I have been looking forward to going back to my office — or backish, since it likely won’t be full-time — in a few weeks.

I have been looking forward to attending synagogue for the Jewish holidays in September, to going to dinner in indoor restaurants with friends, to resuming real life. I have been appreciating the ability to see my 86-year-old mother without fear of infecting her; now I have to worry anew about her getting on a plane to come visit us, as she was planning.

As I was writing this, a vaccinated friend texted to say he had tested positive. He’s not very sick, but he could have infected others who are more vulnerable. This variant is no joke.

It’s reasonable, it’s fair, and it’s legal to step up the pressure on the reckless noncompliant. By reckless, I mean to exclude some people: If you have a medical condition that counsels against vaccination, you are excused.

If you have a good-faith religious objection, same — although I have a hard time imagining what that might be beyond adherents of Christian Science, or what religion does not advocate some version of the Golden Rule.

[A] century ago, balancing the tension between individual liberties and public safety, the Supreme Court upheld the ability of state and local governments to enforce mandatory vaccination laws. “In every well-ordered society charged with the duty of conserving the safety of its members,” wrote Justice John Marshall Harlan, “the rights of the individual … may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.” (More on this below).

Federal judges have already rejected challenges to vaccine mandates by hospitals and public universities. The Equal Employment Opportunity Commission has made it clear that federal anti-discrimination laws don’t prevent private employers from requiring proof of vaccination. The Justice Department’s Office of Legal Counsel concluded that federal law “does not prohibit public or private entities from imposing vaccination requirements” for vaccines even at the emergency-use stage.

Supreme Court reporter Ian Millhiser explains, Yes, Covid-19 vaccine mandates are legal:

In 1902, the city of Cambridge, Massachusetts, faced a smallpox outbreak. In response, the local health board ordered the city’s residents over the age of 21 to be vaccinated against this disease. Violators faced a $5 fine.

After a local pastor was fined for violating this vaccine mandate, he appealed his case all the way to the Supreme Court. The Court told him to pound sand in Jacobson v. Massachusetts(1905).

“The liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint,” Justice John Marshall Harlan wrote for the Court. He added that “there are manifold restraints to which every person is necessarily subject for the common good.”

Under Jacobson, state and local governments — though not necessarily the federal government — may mandate vaccines for nearly all of their residents.

That decision has obvious relevance today. We now have multiple vaccines against Covid-19 that are both safe and shockingly effective, and they are available for free for all Americans. Yet the pandemic continues to rage in the United States because a large minority of Americans have yet to get a shot. While some people may face legitimate obstacles, others are just obstinate. Policymakers and other leaders, in other words, may need to take a page from Cambridge’s early 20th-century health board.

Some already are. Many of the first mandates are from employers: The state of New York, for example, recently announced that all of its employees will have to either get vaccinated or submit to weekly coronavirus testing, and President Joe Biden plans to impose similar requirements on federal employees.

Many private employers also require vaccines — Google, for example, will insist that its employees be vaccinated in order to enter the company’s offices. More than 600 colleges and universities require at least some of their students, faculty, and staff to be vaccinated.

These sorts of mandates will undoubtedly trigger lawsuits from vaccine resisters. In some cases, individuals with religious objections to vaccines or people with disabilities that preclude them from being vaccinated will have strong legal claims — much like schoolchildren who can already seek exemptions from schools’ vaccination requirements if they have religious objections.

But, assuming that the courts follow existing law — and assuming that Republican state governments do not enact new laws prohibiting employers from disciplining workers who refuse to be vaccinated — most challenges to employer-imposed vaccination requirements should fail.

Under Jacobson, moreover, states should be free to order everyone within their borders to be vaccinated against Covid-19, although it’s far from clear whether the federal government could do the same.

Of course, there is no guarantee that the Roberts Court, which is eager to impose limits on public health officials and not especially bothered about overruling precedents, will follow Jacobson if a state does enact a vaccine mandate. But there is good reason to believe that it will. Even Justice Neil Gorsuch, one of the most conservative members of the current Court, recently described Jacobson as a “modest” decision that “didn’t seek to depart from normal legal rules during a pandemic.”

The bottom line, in other words, is that, under existing law, numerous institutions within the United States may require their employees — and, in some cases, their citizens — to be vaccinated against Covid-19.

[So] long as Jacobson remains good law, state and local governments may require their residents to get vaccinated. Indeed, states currently require their residents to get a wide range of vaccines by mandating that children be vaccinated before entering school or certain forms of child care. The only reason why a Covid-19 vaccine mandate would need to apply to adults is that the virus recently emerged, so most Americans were well past school age when they needed a vaccine.

That said, the Supreme Court will likely permit some individuals to seek exemptions from a Covid-19 vaccine mandate. Ever since Justice Amy Coney Barrett gave conservatives a 6-3 majority on the Court last fall, the Court has been extraordinarily aggressive in granting religious exemptions to Covid-related public health orders.

[To] be brief: Neither Congress nor President Biden can likely force citizens to be vaccinated, although the federal government can use financial carrots and sticks to encourage vaccination.

[It] is equally clear that state governments may impose vaccination requirements. And, while the federal government’s power is probably less broad, it is broad enough to give every American a powerful financial incentive to become vaccinated.

Matt Ford at The New Republic adds, Vaccine Mandates Are as American as Apple Pie (excerpt):

If you support mandatory vaccination to fight Covid-19, you are in good company. The first vaccine mandate in American history came from none other than George Washington at the height of the American Revolution. America’s struggle for independence coincided with a major smallpox epidemic that raged through North America in the 1770s and 1780s, and it was an omnipresent threat to the ragtag Continental Army.

“By January 1777 [Washington] ordered Dr. William Shippen to inoculate every soldier who never had the disease,’” historian Ron Chernow wrote in his 2010 biography of the first president. “‘Necessity not only authorizes but seems to require the measure,’ [Washington] wrote, ‘for should the disorder infect the army in the natural way and rage with its usual virulence, we should have more to dread from it than the sword of the enemy.’ This enlightened decision was as important as any military measure Washington adopted during the war.”

[A]nti-vaxxer groups often allude to basic American values to resist vaccine mandates, asserting that they have the liberty not to take steps to ensure that they don’t spread infectious diseases to other people. Public health officials, in their version of events, are derided as authoritarian and tyrannical figures. This juvenile worldview could not be more backward. Getting vaccinated is as American as baseball and apple pie—and so is compelling those who refuse to do so voluntarily

When Covid-19 vaccines became widely available this spring, the immediate priority was ensuring that those who wanted to get the vaccine could do so. Millions of Americans did their patriotic duty to one another and rushed out to get the jab. But millions of their fellow citizens did not. In May, President Joe Biden set a goal of 70 percent vaccination among adults by July 4, once again linking American independence to a mass vaccination campaign. As of the end of July, however, only 69 percent of Americans have so far received at least one shot, and only 60 percent can be described as fully vaccinated.

These vaccination rates are, unfortunately, not evenly distributed throughout the country. States in New England are leading the pack: Vermont, for example, has given at least one dose to nearly 87 percent of adults in the state and fully vaccinated 77 percent of them, with Connecticut and Massachusetts close behind. (A recent CNN report on how Vermonters are enjoying their regional herd immunity shows how the vaccine is pretty successful at fully unleashing what Americans might call “freedom.”) In the southern and central portions of the country, things are far worse. Mississippi has yet to administer at least one dose to more than 50 percent of its adult population, and 10 other states also haven’t yet fully vaccinated a majority of their adults.

Some of these shortfalls can be attributed to equity problems. But many more can be blamed on culture-war nonsense or sheer stubbornness. My personal patience with the “vaccine-hesitant” ran out when I read a ProPublica article last week about eldercare workers who refuse to get vaccinated. Covid-19 is particularly dangerous for elderly Americans, who make up the bulk of the American death toll from the virus so far. Their excuses were as unpersuasive as they were callous. “This is just a personal choice and I feel it should be a free choice,” one of the nurses told ProPublica. “I think it’s been forced on us way too much.” It has not, but it should be.

As with every other aspect of American life, some of this “hesitancy” has led to litigation against real or imagined vaccine mandates. Fortunately, vaccine mandates are undoubtedly constitutional. [See above.]

It’s here that we should note that mandatory vaccination doesn’t mean forcible vaccination. Biden won’t be sending troops door-to-door with those tranquilizer guns from Jurassic Park to shoot vaccine-laden darts into unsuspecting civilians. What it does mean is that those who refuse to get the vaccine despite a mandate will face certain consequences for it, such as regular Covid testing or denial of entry into certain places. The private sector has even more leeway to impose consequences on workers who won’t get vaccinated: A Texas hospital system ousted more than 150 health care workers earlier this summer who had refused to get the shot.

[F]or all the anti-vaxxers’ talk of liberty and personal freedom, the nature of pandemics and infectious diseases means that everyone else is forced to suffer for their short-sightedness. Covid-19 has imposed its own subtle tyranny upon our lives for the past 18 months. Even if they do not get sick and die, people have been unable to find work, to meet family and friends, to go on dates and fall in love, to hold weddings and funerals, and to enjoy the full blessings of everyday life without risking their own health and the health of others. If anti-vax folks mistake a key for a shackle, that’s only because their selfishness is part of the problem.

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Washington, for his part, had some sympathy for vaccine-hesitant individuals. His wife, Martha, had become one of them after witnessing her son Jacky’s adverse reaction to smallpox inoculation when he was young. As a result, as Chernow noted, she did not enter Boston after the Continental Army liberated the city, for fear of catching smallpox from one of the town’s residents. But she eventually yielded under pressure from her husband and out of wartime necessity. After a slight fever and a brief quarantine, she was safe. The Covid-19 vaccines are substantially more safe when compared to [1770s] smallpox inoculation—and the rewards for mandating them will be just as great.

UPDATE: Axios reported, Vaccine mandates are popular:

Nearly two-thirds of Americans say they’d support federal, state or local governments requiring everyone to get a coronavirus vaccine, according to a new survey conducted by The COVID States Project.

This kind of blanket mandate hasn’t even been proposed, at any level of government. But more piecemeal requirements are rapidly becoming more popular, and the survey suggests Americans are fine with that.